Surrendering the Fourth Amendment for a better user experience?

“When they ask for my credit card.” That was tech evangelist and author, Robert Scoble’s (@scobleizer), answer to a Seattle audience member last year as to when he would stop sharing personal information online. That was where privacy began for him.

Though many in the audience thought Robert a little crazy, I liked the answer. I found myself much the same.

The more information I was willing to share, the better the information and people I discover. Whether in search or on social networks, the more I share of my background and interests, the better my experience.

When the question arose in a discussion last week of people (NSA and Internet companies) listening in to what I was discussing and sharing, my response was that it didn’t bother me too much. If I knew what the government was hearing from the terrorist world each day, I’d be in favor of their listening in, I rationalized.

It wasn’t until Doc Searls (@dsearls), co-author of The Cluetrain Manifesto and fellow at the Center for Information Technology & Society (CITS) at the University of California, Santa Barbara, wrote that we’re trading the Fourth Amendment for user experiences that I started re-thinking my position. And I’m the lawyer, not Doc.

From Searls:

All we know for sure in this mess is that there is no clear limit to the spying on us, by both business and government, and that we’ve traded our freedom, our privacy, and the whole freaking Fourth Amendment, for… what?

With business we know: better “experiences,” mostly through advertising. It’s silly, but that’s the bubble we’re in right now.

Searls is right in that in regard to the government, we’re screwed. We’re never going to know what information has been captured for national security reasons, it’ll remain classified. Shouldn’t we require hard evidence of potential terrorist attacks, as opposed to accepting X number of attacks have been avoided?

In regard to private companies we’re surrendering our privacy via the terms of use agreements buried via links at the bottom of a site. No constitutional protection there – until maybe the government asks for your data and your social network hands it over or lets you defend the government demand.

The Fourth Amendment, with some exceptions, prohibits unreasonable searches and seizures and requires any search warrant to be judicially sanctioned and supported by probable cause.

You have to wonder what James Madison, who introduced the Fourth Amendment to Congress in 1789, would think of lawyers like me writing off privacy for a better user experience and unsubstantiated security threats.

You got me thinking, Doc, as to where lawyers like me have an obligation to take a stand on privacy. Especially when it comes to government action where we have constitutional protection if I do decide to trade privacy for experience on the private company side.